What the panel ordered
Petition for Reconsideration granted; Findings of Fact of June 1, 2022 rescinded; matter returned to trial level for further proceedings and decision on industrial causation issue.
Defendant sought reconsideration of the WCJ's Findings of Fact of June 1, 2022, which found industrial injury from COVID-19; the WCAB granted reconsideration and rescinded the Findings, returning the matter to the trial level for further development.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCAB found that the medical evidence, specifically Dr. Hirsch's report, was incomplete and insufficient as it lacked a full history including working conditions and co-worker diagnoses, requiring further development of the record on industrial causation.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact of June 1, 2022, wherein it was found that, while employed on March 11, 2020 as a probation officer, applicant sustained industrial injury to "the body system, COVID-19, circulatory system, respiratory system, [and] psyche/stress." The only issue at trial was whether applicant's injury arose out of and in the course of her employment. The finding of industrial injury was made both based on the fact that qualified medical evaluator internist Jeffrey A. Hirsch, M.D. found the injury industrial (Finding No. 7) and because the injury was presumed industrial pursuant to Labor Code section 3212.86.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Hirsch's report was incomplete and lacked specific history of working conditions and co-worker COVID diagnoses.
Favours Defendant prevailed
This lack of complete medical evidence required further development of the record and precluded reliance on the report as substantial evidence of industrial causation.
From the decision · page 3Dr. Hirsch must be provided with the more specific history given in the trial testimony including applicant's working conditions, the frequency and duration of her contacts with the public and her co-workers, and the fact that none of applicant's co-workers were diagnosed with COVID during any relevant period.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Found the injury industrial but report was incomplete due to lack of full history including working conditions and co-worker diagnoses.
Report was not substantial medical evidence due to incomplete history; further development required.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact of June 1, 2022, wherein it was found that, while employed on March 11, 2020 as a probation officer, applicant sustained industrial injury to "the body system, COVID-19, circulatory system, respiratory system, [and] psyche/stress." The only issue at trial was whether applicant's injury arose out of and in the course of her employment. The finding of industrial injury was made both based on the fact that qualified medical evaluator internist Jeffrey A. Hirsch, M.D. found the injury industrial (Finding No. 7) and because the injury was presumed industrial pursuant to Labor Code section 3212.86.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.App.4th 644
The applicant has the burden of establishing the reasonable probability of industrial causation.
Reports with erroneous or inadequate history do not constitute substantial medical evidence.
From the decision · page 3"The applicant for workers' compensation benefits has the burden of establishing the `reasonable probability of industrial causation'" (LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.App.4th 644, 650 [63 Cal.Comp.Cases 253] citing McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660].) All findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) Reports that contain an erroneous or inadequate history do not constitute substantial medical evidence upon which the WCJ can rely. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 1993]; Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 801 [33 Cal.Comp.Cases 358].)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Hirsch's report lacked a complete history including applicant's working conditions and co-worker COVID diagnoses.
From the decision · page 3Dr. Hirsch must be provided with the more specific history given in the trial testimony including applicant's working conditions, the frequency and duration of her contacts with the public and her co-workers, and the fact that none of applicant's co-workers were diagnosed with COVID during any relevant period.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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